DICTATION EXERCISE-71

          The Rajya Sabha came into being on 3^rd of April, 1952 and held its first session on 13 May the same year. The second chamber underwent severe pre-natal scrutiny in the Constituent Assembly. The proposal for a bicameral central legislature for the country was discussed at length, with deep divisions between the proponents and opponents. This churning went on for eight days with the participation of leading members of the Constituent Assembly. Finally, the Council of States and its mandate emerged from this brainstorming discussion. After 68 years, it is instructive to revisit the debates on the need for a Council of States and its performance since then. The central legislature that came into being under the Government of India Act, 1919 was bicameral with a Council of States comprising 60 members and a Legislative Assembly comprising 145 members. The¹⁴⁰ membership and voting norms for the Council of States were¹⁵⁰ so restrictive that only wealthy land owners, merchants and those¹⁶⁰ with legislative experience could enter it. Women could neither vote nor seek membership. The Government of India Act, 1935 proposed an elaborate and improved version of the second chamber, but this never materialized. The Constituent Assembly was formed in 1947. After adoption of the Constitution, the Constituent Assembly became the Provisional Parliament and made laws till 1952. 

          Bicameralism is a principle that requires the consent of two differently constituted chambers of Parliament for making or changing laws. This principle came into operation in 1787 with the adoption of the US Constitution. Its appeal grew in strength from time to time. At present, 79 Parliaments of the world are bicameral, which is 41 per cent of the total number. Federalism has²⁸⁰ been in vogue since ancient times when some states got together to confer the power of law-making on a central³⁰⁰ authority. But modern federalism is entirely different given the complexity of geographical, regional, social and economic diversities marking the constituent³²⁰ units of a federation or a union. It is more so in India. The US is a union of constituent states and so is India. Each constituent state has a set of unique features. As far as the US Constitution is concerned, it is said that the second chamber enables a second and reflective expression of representative opinion besides checking the propensity to yield to the impulse of sudden and violent passions. The US Constitution-makers were influenced by the proposition of the renowned French philosopher Montesquieu who said, “The legislative body being composed of two parts, they check one another⁴²⁰ by the mutual privilege of rejecting.” They also noted that the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or really impede revolution. ⁴⁵⁰

Federalism and bicameralism are linked because the federal character of a nation comprising constituent units can be reflected in, and secured by a bicameral legislature. Despite being conscious of the⁴⁸⁰ huge degree of diversities and attendant inequalities that marked British India, and aware of the emergence of independent India as a Union of States, the proposal for the Rajya Sabha as a second chamber had no easy sailing in the Constituent Assembly. It was subjected to serious argumentation and had a narrow escape. A member of the Constituent Assembly asserted that an Upper House was not essential and viewed it as a creation of imperialism. Another member went further and warned⁵⁶⁰ that such a chamber would only prove to be a clog in the wheel of progress of the nation. He said that the need of the hour was quick law-making which the second chamber would obstruct. He was perhaps referring⁶⁰⁰ to the role of the House of Lords in the British Parliament whose powers to veto the expenditure proposed was removed, and its ability to obstruct the laws made by the House of Commons was later severely curtailed in⁶⁴⁰ the early 20^th century. A third member vehemently opposed parity of powers in law-making for the Upper House. Proponents of the second chamber felt that it would introduce an element of sobriety and second thought besides lending voice to the constituent units in the legislative scheme of things. They argued that a second chamber would enable the genius of the people⁷⁰⁰ to have full play besides checking hasty legislation. The differences over the need for a second chamber persisted even after adoption of the Constitution of India in 1950. Dr. S. Radhakrishnan, the first Chairman of the Rajya Sabha, said that Parliament is not only a legislative body but also a⁷⁵⁰ deliberative one which enables the members to debate major issues of public importance. He said that the role of the Upper House is to be a deliberative body besides balancing the fickleness and passion of the elected House. So, what follows from the above discussion is that the House⁸⁰⁰ elected directly by the people is susceptible to passions of the moment and electoral considerations. Their imprint on legislation needs to be checked by the second chamber whose members are expected to be sober, wise and well-informed with domain knowledge. As⁸⁴⁰ can be gleaned from the Constituent Assembly debates and the experiences of other Parliaments, the mandate of the Rajya Sabha is to revise or delay legislation without proving a clog in the wheel of the progress; to represent the interests of the States as a federal chamber; and be a deliberative body holding high-quality debates on important issues.

The mode⁹⁰⁰ of elections to and tenures of Rajya Sabha and Lok Sabha are different. This could lead to a situation of the government of the day having majority as required in the Lok Sabha and not having the numbers in the Rajya Sabha. This is what has happened over the years. The Opposition has had an upper hand in the⁹⁶⁰ Rajya Sabha for 39 of the 68 years in terms of numbers, but this did not adversely impact making of laws, ⁹⁸⁰ even though other concerns have emerged. The Rajya Sabha has held 5,472 sittings and passed 3,857 Bills till the Budget Session in 2020, even as it asserted its independence on some occasions. There were three joint sittings of both the Houses in 1961, 1978 and 2002 when the Rajya Sabha rejected the Dowry Prohibition, Bill 1959, the Banking Services Commission (Repeal) Bill, 1997, and the Prevention of Terrorism Bill,¹⁰⁵⁰ 2002, respectively. In 1959, the then government had majority in the Upper House. The Rajya Sabha also differed with the Lok Sabha when it rejected the 24^th Constitution Amendment Bill, 1970, seeking to abolish privy purses to the erstwhile rulers and two more such Constitution Amendment Bills in 1989 seeking to strengthen the Panchayats and Municipalities which later became the Acts of Parliament. There is also an instance when the Rajya¹¹²⁰ Sabha passed five Constitution Amendment Bills in a day on August 25, 1994, when the then government did not have the numbers. The Upper House has passed several major Bills relating to GST, IBC, triple talaq, re-organization of Jammu and Kashmir, citizenship amendment etc., even though the present Government does not have the numbers in Rajya Sabha.  This suggests that no case can be made against the Rajya Sabha as being obstructionist in law-making. Irrespective of the composition of¹²⁰⁰ the House, the time spent on legislation remains 29 per cent of the total functional time of the Rajya Sabha. The way forward for the Upper House should be to discuss, debate and decide on each issue. If the perception is that political considerations form the basis of rising disruptions, it needs to be addressed by all the stakeholders including all¹²⁶⁰ sections of the Rajya Sabha. The line between obstruction and disruption is thin and needs to be put aside. The¹²⁸⁰ Rajya Sabha is turning out to be more and more a deliberative body having spent 47 per cent of the time of the House on discussing issues of public importance during the period from 2015 to 2019. This was primarily on account of the Question Hour being abandoned due to disruptions. Since 1978, the annual productivity of the Rajya Sabha has been 100 per cent in only 12 years¹³⁵⁰ and it has never been 100 per cent in the last 29 years. The lowest annual productivity of 39 per cent was recorded in 2018.

                                                                                        

The Supreme Court has failed to discharge a judicial duty it was called upon to perform. Its decision to send the question of restoring 4G connectivity¹⁴⁰⁰ in Jammu and Kashmir for a review to the very authorities who imposed the restriction in the first place is a clear abdication of responsibility. The mandate that the Court enjoys under Article 32 of the Constitution to enforce fundamental¹⁴⁴⁰ rights cannot be transferred to the Executive. It is quite stark that the three-member Bench has resorted to this measure despite coming to the conclusion that the grievance of the petitioners merits consideration. The judgment is in consonance with a judicial trend that seeks balance between rights and national security. In the context of Jammu and Kashmir, this¹⁵⁰⁰ approach inevitably results in unquestioning defence to any claim that the Executive makes without scrutinizing the nature and quality of the claim. The Supreme Court has not even pursued the attempt to lay down a set of rules by which authorities seeking to impose restrictions on fundamental rights must adhere to the doctrine of proportionality. It has asked two Secretaries in the Union Government and the Jammu and Kashmir Chief Secretary to consider the case made out by the petitioners for restoring 4G services. The Supreme Court acknowledges that it might be better and convenient to have better internet facilities during a¹⁶⁰⁰ global pandemic and a national lockdown.